State v. Van Loon

                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. VAN LOON


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                  STATE OF NEBRASKA, APPELLEE,
                                                  V.

                               DAVANTE L. VAN LOON, APPELLANT.


                            Filed December 27, 2022.      No. A-21-937.


       Appeal from the District Court for Washington County: JOHN E. SAMSON, Judge. Affirmed.
       Kenneth Jacobs, of Hug and Jacobs, L.L.C., for appellant.
       Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.


       PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.
       PIRTLE, Chief Judge.
                                         INTRODUCTION
        Following a jury trial in the district court for Washington County, Davante L. Van Loon
was found guilty on five counts of child abuse and sentenced to an aggregate of 18 to 44 years of
incarceration. On appeal, Van Loon challenges the sufficiency of the evidence on each count and
argues that the district court imposed an excessive sentence. Van Loon further raises, through new
counsel, six claims of ineffective assistance of trial counsel. For the reasons that follow, we affirm.
                                          BACKGROUND
        The criminal charges in this case arose out of a child abuse investigation that began in the
evening hours of March 26, 2019. Shortly after 4 p.m. on that day, a home daycare provider,
Morgan Lee, sent a text message to Rana M. notifying her of an apparent injury to one of Rana’s
children, whom we shall refer to as J.M. throughout this opinion. J.M. was roughly 7 months old
at the time, and he was not yet able to walk or talk. Rana promptly picked her two children up



                                                 -1-
from Lee’s residence and transported J.M. to the emergency room. Rana recalled that J.M.
appeared to be experiencing severe pain in his right arm, and it was later determined that J.M.
suffered an “acute” and “displaced” bone fracture near his right elbow.
        Due to suspicions of child abuse, J.M. was transferred to Children’s Hospital in Omaha
(Children’s) for a higher level of care. Dr. Juan Juarez, a physician specializing in pediatric
emergency medicine at Children’s, testified that he assumed care of J.M. upon his transfer to
Children’s and conducted a comprehensive medical evaluation, which included an x ray of all the
bones in J.M.’s body. Juarez’s evaluation revealed a number of additional suspicious injuries not
explained by J.M.’s medical history. In addition to the acute displaced right arm fracture, J.M. had
also suffered an acute nondisplaced fracture to the upper portion of his left arm, a healing “spiral
fracture” to his left leg, bruising to his genitals, and a torn frenulum, which is the connective tissue
under the tongue. With the exception of the frenulum tear, none of these injuries had been
previously reported.
        Dr. Lincoln Wong, a pediatric radiologist involved in J.M.’s care at Children’s, testified
that “acute” means a new fracture that does not show any signs of healing, and “displaced” means
that the bone fragments actually separated from one another. Wong further testified that an acute
fracture is generally considered to have occurred within 10 days of discovery, as signs of healing
normally appear between 10 and 14 days after injury. Accordingly, a “healing” fracture is generally
considered to have occurred at least 10 to 14 days prior to discovery. Wong indicated that it is
difficult to determine the precise age of a healing fracture, but he estimated that the healing
fractures in this case probably occurred within 21 days of discovery.
        With the exception of the frenulum tear, Rana and Lee both testified that J.M. showed no
signs of injury and demonstrated no discomfort when he was dropped off on the morning of March
26, 2019. The tear to J.M.’s frenulum was first observed by Lee and brought to Rana’s attention
about a week prior on March 21, 2019. Rana recalled that Van Loon was present in the home when
Lee reported the injury and it was not clear how the injury occurred. Rana did not seek medical
attention, as she initially thought J.M. simply scratched himself. However, Dr. Suzanne Haney, a
pediatric child abuse expert involved in J.M.’s care at Children’s, opined that the frenulum injury
was not an injury that J.M. could have reasonably inflicted upon himself. Haney explained that the
injury occurs when a hard object is “forcibly shoved” into the child’s mouth. Both Haney and
Juarez opined that such an injury is indicative of child abuse.
        With respect to the bruising to J.M.’s genitals, Rana recalled observing similar bruising a
week or two prior to March 26, 2019. At that time, Rana thought the bruising was from J.M.
jumping too much in a bouncer, so she postulated that the bruising discovered on March 26 could
have similarly been caused by the bouncer. However, Haney opined that the bruising to J.M.’s
genitals would have required a significant amount of force inconsistent with a self-inflicted injury
from jumping in a bouncer. Haney further opined that it was “very unlikely” that another child
could have inflicted the bruising.
        With respect to the acute displaced fracture to J.M.’s right arm, Haney explained that “the
amount of force required to cause this would have been so excessive that whoever did it would
have known,” yet no reasonable explanation for the injury was provided. J.M. ultimately required
surgery to repair the injury and Haney opined that the injury could have caused permanent
disfigurement without surgery. With respect to the acute fracture to J.M.’s left arm, Haney again


                                                 -2-
noted the significant degree of force required to cause such an injury. However, unlike the
displaced fracture to the right arm, Haney opined that the left arm would likely heal well without
significant medical intervention. Finally, Haney testified that the spiral fracture to J.M.’s left leg
would have been caused by taking ahold of the knee and twisting the ankle with significant force.
Treatment of the spiral fracture required J.M.’s left leg to be immobilized in a hard cast for around
a month. Altogether, given the number and nature of J.M.’s injuries, along with J.M.’s age and the
lack of explanation as to the cause of the injuries, Juarez, Wong, and Haney all opined with a
reasonable degree of medical certainty that J.M.’s injuries were not accidental and were inflicted
as a result of abuse.
         Rana testified that her children started going to Lee’s for daycare on or about February 18,
2019. Prior to Lee’s, Rana’s children attended daycare in the home of Jennice Reid-Hansen
beginning in early January 2019. Reid-Hansen testified that she never noticed any signs of injury
or abuse during the roughly 1 month that J.M. attended daycare in her home. Reid-Hansen ceased
providing daycare services to care for a new foster child with heightened needs. Lee’s two children
had also been attending daycare at Reid-Hansen’s, so both Rana and Lee were in need of child
care. Lee decided to open her own home daycare service, and Rana started sending her children to
Lee’s shortly thereafter.
         Rana testified to her understanding that Van Loon would not be involved in the supervision
of her children. Rana recalled sometimes seeing Van Loon at the home when she dropped off or
picked up the children, but she assumed Van Loon was at work during the day. However, Lee
testified that Van Loon had been off work due to bad weather for roughly 2 weeks leading up to
March 26, 2019. While Lee testified that Van Loon often left the house even when he was off
work, she also confirmed that Van Loon had repeated, and sometimes unsupervised, access to J.M.
and the other children during that time. Moreover, Lee confirmed that Van Loon was home for a
number of hours on March 26, 2019, and had substantial contact with J.M. on that day. Law
enforcement conducted an interview with Van Loon in the early morning hours of March 27, which
ultimately led law enforcement to suspect that Van Loon had inflicted J.M.’s injuries.
         Van Loon’s interview with law enforcement was video and audio recorded, which
recording was admitted into evidence. Van Loon also provided a written statement which was
likewise admitted into evidence. Law enforcement detective, Russ Cook, conducted the interview
and testified at trial to his observations of Van Loon as it relates to the child abuse investigation.
Cook noted that Van Loon had an “odd” reaction when Cook described the extent of J.M.’s
injuries. “[Van Loon] placed his hand over his mouth and became silent for a very long period of
time.” Van Loon confirmed that he had contact with J.M. on March 26, 2019, and on prior
occasions, including at least one occasion in which Van Loon tried to feed J.M. a bottle but J.M.
refused to eat.
         As far as possible explanations for J.M.’s injuries, Van Loon reported that on or about
March 18, 2019, he lost his balance while climbing over a baby gate and fell on J.M., possibly
injuring J.M.’s upper left leg and lower left arm. Van Loon further reported that on March 21, he
was “play walking” with J.M., holding J.M. upright by his armpits, when Van Loon got distracted
and lost his grip causing J.M. to fall to the floor. Haney testified that the March 18 incident could
have possibly caused the fracture to J.M.’s upper left arm, but it would not explain the totality of



                                                -3-
J.M.’s injuries. Haney further opined that the March 21 incident as described by Van Loon would
not have caused any of J.M.’s injuries.
         At trial, there was no dispute that Van Loon was present in the home on the morning of
March 26, 2019, after J.M. arrived. It was further undisputed that Van Loon left the home at some
point in the day and returned between 4 and 5 p.m. In Van Loon’s recorded interview, he first
indicated that he had only a brief interaction with the children before leaving for Omaha around
9:30 a.m. to see a friend. However, a few minutes later, Van Loon recalled that he was actually
still present when Lee was making lunch for the children, and Lee testified that she usually served
lunch around 11 a.m. According to Van Loon, it was around that time that he noticed J.M. was
fussy, so he swaddled J.M. in a blanket and passed J.M. to Lee.
         Similarly, Lee initially testified that Van Loon left the house between 9 and 10 a.m.
However, upon further questioning, she likewise recalled that Van Loon was still home around 11
a.m. and may have even been home as late as 1:30 p.m. Lee ultimately testified that she could not
recall when Van Loon left the house that day. Lee recalled that she asked Van Loon to pick up
J.M. while she was helping the other children with lunch, and Van Loon walked around with J.M.
for some time, eventually swaddling J.M. in a blanket. At some point after lunch, while the other
children were napping, Lee testified that she took J.M. from Van Loon, and Van Loon left the
house. Van Loon then returned between 4 and 5 p.m., as Rana recalled that Van Loon approached
her while she was loading the children in her car and asked that Rana keep him and Lee updated
on J.M.’s condition. Rana testified that she found this strange because she did not normally discuss
the children with Van Loon.
         On December 17, 2019, the State filed an amended information charging Van Loon with
five counts of child abuse. Count 1 alleged intentional child abuse resulting in serious bodily injury
and pertained to the acute displaced fracture to J.M.’s right arm. Count 2 alleged intentional child
abuse resulting in serious bodily injury and pertained to the acute nondisplaced fracture to J.M.’s
left arm. Near the end of trial, the court sustained in part Van Loon’s motion for directed verdict
on count 2 because the State failed to prove that the left arm fracture constituted serious bodily
injury. Thus, count 2 was presented to the jury as a charge of intentional child abuse not resulting
in serious bodily injury. Count 3 alleged intentional child abuse not resulting in serious bodily
injury and pertained to J.M.’s torn frenulum. Count 4 alleged intentional child abuse not resulting
in serious bodily injury and pertained to the bruising to J.M.’s genitals. Count 5 alleged intentional
child abuse resulting in serious bodily injury and pertained, at least initially, to a number of
additional fractures in various stages of healing. The State ultimately limited the allegations in
count 5 to the spiral fracture to J.M.’s left leg. The jury was further instructed on the lesser-included
charge of negligent child abuse on each count.
         After trial and deliberations, the jury found Van Loon guilty of intentional child abuse
resulting in serious bodily injury as alleged in counts 1 and 5, intentional child abuse not resulting
in serious bodily injury as alleged in counts 2 and 4, and negligent child abuse not resulting in
serious bodily injury as a lesser-included crime of the allegations in count 3. Counts 1 and 5 carried
a maximum punishment of 50 years in prison, counts 2 and 4 carried a maximum punishment of 3
years in prison, and count 3 carried a maximum punishment of not more than 1 year in prison. See,

 (Reissue 2016); 

 (Reissue 2016); 

 (Reissue 2016).


                                                  -4-
        Following a presentence investigation, the district court sentenced Van Loon to a term of
18 to 44 years of incarceration on counts 1 and 5, which sentences were to be served concurrently.
The court further sentenced Van Loon to lesser concurrent terms of incarceration on counts 2
through 4, such that Van Loon’s aggregate sentence was 18 to 44 years of incarceration. Van Loon
appealed.
                                  ASSIGNMENTS OF ERROR
        Van Loon assigns, restated, that the district court erred in (1) accepting the jury verdict
based on insufficient evidence and (2) imposing an excessive sentence. Van Loon further raises
six claims of ineffective assistance of counsel.
                                    STANDARD OF REVIEW
        In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the
evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate
court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh
the evidence, and such matters are for the finder of fact. The relevant question for an appellate
court is whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. State v. Bryant, 

, 

 (2022).
        A sentence imposed within the statutory limits will not be disturbed on appeal in the
absence of an abuse of discretion by the trial court. State v. Greer, 

, 

(2022). A judicial abuse of discretion exists only when the reasons or rulings of the trial judge are
clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in
matters submitted for disposition. 

        The fact that an ineffective assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved on direct appeal; the determining factor is whether the
record is sufficient to adequately review the question. State v. Blake, 

, 

 (2022). The record is sufficient to resolve on direct appeal a claim of ineffective assistance of
counsel if the record affirmatively proves or rebuts either deficiency or prejudice with respect to
the defendant’s claims. 

                                            ANALYSIS
Sufficiency of Evidence.
        Van Loon’s first assignment of error challenges the sufficiency of the evidence in support
of his conviction. Van Loon does not dispute the extent of J.M.’s injuries nor the expert medical
testimony that such injuries were the result of nonaccidental abuse. Neither does Van Loon dispute
that he had access to J.M. both on March 26, 2019, and on prior occasions in the month leading up
to that date. Rather, Van Loon’s central argument on appeal is that the State failed to prove that
Van Loon, as opposed to some other individual, was the perpetrator of abuse. Van Loon argues
“There were numerous other individuals who all had the same amount of access to J.M. as [Van
Loon] and nothing other than a tunnel vision to convict [Van Loon] was presented.” Brief for
appellant at 23. In this way, Van Loon suggests that the evidence pointed to numerous possible
perpetrators and the State simply identified the wrong one. However, our standard of review does


                                                -5-
not permit us to reverse Van Loon’s convictions simply because the State failed to definitively
exclude other possible perpetrators. Rather, we are tasked with viewing the evidence in the light
most favorable to the prosecution and determining whether any rational jury could have concluded
that Van Loon inflicted J.M.’s injuries.
        Count 1 alleged that Van Loon intentionally inflicted the acute displaced fracture to J.M.’s
arm on or about March 26, 2019. The record reflects that Van Loon was present in the home that
morning and he was also present when Rana picked up the children between 4 and 5 p.m. While
there was evidence that Van Loon left the home for a period of time, the record reflects that he
was present long enough to have sustained contact with J.M. prior to leaving. J.M. showed no signs
of injury or discomfort when he was dropped off at Lee’s residence that morning, yet the acute
displaced right arm fracture was apparent when J.M. was picked up. The record reflects that Lee
and Van Loon were the only adults with access to J.M. during that time, and neither of them
provided any reasonable explanation for J.M.’s injury. Viewing the evidence in the light most
favorable to the prosecution, a rational jury could have found that Van Loon intentionally inflicted
the acute displaced right arm fracture on or about March 26, 2019.
        Count 2 alleged that Van Loon intentionally inflicted the acute fracture to J.M.’s left arm
on or about February 18, 2019, through March 27, 2019. As an acute fracture, it was estimated that
J.M. sustained the fracture within 10 days of its discovery on March 26, and it could have occurred
on March 26 along with the right arm fracture. There was no dispute that Van Loon had access to
J.M. on multiple occasions during that period of time. While Haney testified that this injury could
have possibly been explained by Van Loon’s report of accidentally falling on J.M., such report
was not consistent with the totality of J.M.’s injuries. Viewing the evidence in the light most
favorable to the prosecution, a rational jury could have found that Van Loon intentionally inflicted
the acute fracture to J.M.’s left arm on or about February 18 through March 27.
        Count 3 alleged that Van Loon intentionally inflicted the tear to J.M.’s frenulum on or
about March 21, 2019. Lee reportedly noticed the injury shortly after J.M. arrived at her residence
on March 21 and promptly notified Rana. Rana testified she initially thought J.M. could have
scratched himself, but Haney opined that that was not a reasonable explanation for the injury, as
that injury usually occurs when a hard object is forcibly pushed into a child’s mouth. There was
evidence that Van Loon had access to J.M. on March 21 at the time the injury was reported, and
Van Loon recalled unsuccessfully attempting to feed J.M. on at least one occasion. The jury
ultimately found Van Loon guilty of the lesser-included offense of negligently inflicting the injury.
Viewing the evidence in the light most favorable to the prosecution, a rational jury could have
found that Van Loon negligently inflicted the tear to J.M.’s frenulum on or about March 21.
        Count 4 alleged that Van Loon intentionally inflicted the bruises to J.M.’s genitals on or
about February 18, 2019, through March 27, 2019. Once again, J.M. showed no signs of injury on
the morning of March 26, yet the bruising was apparent when J.M. was evaluated later that
evening. As with count 1, the record reflects that Van Loon had access to J.M. on March 26, and
neither Van Loon nor Lee provided any reasonable explanation for the injury. Rana recalled
observing similar bruising on J.M. in the past, and she thought it was from J.M. jumping too much
in a bouncer. However, Haney opined that that was not a reasonable explanation, rendering the
reappearance of bruising on March 26 more suspicious. Viewing the evidence in the light most



                                                -6-
favorable to the prosecution, a rational jury could have found that Van Loon intentionally inflicted
the bruising to J.M.’s genitals on or about February 18 to March 27.
        Finally, count 5 alleged, as limited after trial, that Van Loon intentionally inflicted the
healing spiral fracture to J.M.’s left leg on or about February 18, 2019, through March 27, 2019.
It was estimated that J.M. sustained the fracture between 10 and 21 days of discovery on March
26. As with the foregoing counts, the record reflects that Van Loon had access to J.M. on multiple
occasions during that period of time. Haney explained that the spiral fracture would have been
caused by someone taking ahold of the knee and twisting the ankle with significant force. Viewing
the evidence in the light most favorable to the prosecution, a rational jury could have concluded
that Van Loon intentionally inflicted the healing spiral fracture to J.M.’s left leg on or about
February 18 through March 27.
        The thread tying each of the counts together is that J.M. sustained a number of extremely
suspicious injuries during a period of time in which Van Loon had repeated access to J.M., and no
party provided any reasonable explanation to account for the totality of J.M.’s injuries. There was
no evidence that J.M. had suffered similar injuries prior to or after that period of time, and multiple
medical experts opined that J.M.’s injuries were the result of nonaccidental abuse. The Nebraska
Supreme Court has previously observed that the evidence in child abuse prosecutions is often
largely circumstantial and need not establish exclusive custody or care to support a conviction. See
State v. Olbricht, 

, 

 (2016). The evidence in the present case made
clear that J.M. was the victim of abuse and Van Loon was one possible perpetrator. Having heard
the evidence and observed the witnesses, a rational jury could have concluded that Van Loon had
inflicted the totality of J.M.’s injuries and thus convicted him on all five counts.
Excessive Sentence.
        Van Loon next assigns that the district court imposed an excessive sentence. Van Loon
does not dispute that his sentences were well within the statutory limits. Rather, Van Loon argues
that his “mentality” and his actions after being convicted weighed in favor of a more lenient
sentence. A number of character witnesses testified at the sentencing hearing on Van Loon’s behalf
and described a positive relationship between Van Loon and his two children. Furthermore, Van
Loon pointed to his role in starting an “addiction therapy group” for fellow inmates and serving as
a “trustee” at the jail while awaiting sentencing. In light of these facts, Van Loon argued that the
sentence imposed by the district court was an abuse of discretion.
        The State counters that all of the information cited by Van Loon was available to the district
court at the time of sentencing and that the court appropriately weighed the required factors. The
State points to various risk factors identified in the presentence investigation, including a “medium
high” risk to reoffend and Van Loon’s criminal history. Brief for appellee at 39. In pronouncing
the sentence, the district court explicitly noted the various sentencing factors and acknowledged
the character witnesses that testified on Van Loon’s behalf. Having weighed and balanced the
appropriate factors, the district court determined that a lengthy term of imprisonment was
necessary. Upon our review of the record, we cannot say the sentence imposed by the district court
amounted to an abuse of discretion. See State v. Harrison, 

, 

 (1999)
(sentence not abuse of discretion so long as within statutory limits, supported by competent
evidence, and not based on irrelevant considerations).


                                                 -7-
Ineffective Assistance of Counsel.
        To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,

, 

, 

 (1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient performance actually prejudiced the
defendant’s defense. State v. John, 

, 

 (2022). To show that counsel’s
performance was deficient, the defendant must show counsel’s performance did not equal that of
a lawyer with ordinary training and skill in criminal law in the area. 

 To show prejudice under
the prejudice component of the Strickland test, the defendant must demonstrate a reasonable
probability that but for his or her counsel’s deficient performance, the result of the proceeding
would have been different. 

        Van Loon first claims that trial counsel was ineffective for proceeding to a jury trial despite
knowledge that Lee had previously been acquitted in a bench trial on charges also arising out of
J.M.’s injuries. Van Loon asserts, albeit without evidence, that he requested to waive his right to a
jury trial and proceed to a bench trial but that trial counsel refused. Van Loon argues that his
conviction in and of itself demonstrates prejudice because he suggests that a bench trial would
have resulted in an acquittal. The State counters that Van Loon cannot show a reasonable
probability of acquittal if the case had been tried to the court instead of a jury, and we agree. Thus,
we conclude there is no merit to Van Loon’s first claim of ineffective assistance of counsel.
        Van Loon’s second and third claims allege that trial counsel was ineffective in the
cross-examination of Rana and law enforcement sergeant, Kelly McManigal, respectively. With
respect to Rana, Van Loon points out an apparent inconsistency between her trial testimony and
her testimony in a separate trial. Specifically, Rana had previously testified that when she arrived
at Lee’s residence to pick up J.M. on March 26, 2019, J.M. was initially silent and only started
crying when his arm was touched. In contrast, Rana’s trial testimony indicated that J.M. was crying
inconsolably immediately upon her arrival. Van Loon argues that Rana’s trial testimony “seemed
to inflate the injury to J.M.,” making it more likely for the jury to conclude that J.M.’s right arm
fracture occurred on March 26, as opposed to a previous day. Brief for appellant at 29. Thus, Van
Loon argues that trial counsel was ineffective for failing to expose this inconsistency to the jury.
        However, Van Loon cannot show prejudice because the evidence clearly established that
J.M.’s right arm fracture was sustained on March 26 during the time that J.M. was at Lee’s
residence. Both Lee and Rana testified that J.M. showed no signs of injury or discomfort that
morning, yet, J.M. was clearly injured and in obvious pain when Rana arrived to pick him up. This
is further corroborated by the expert medical testimony that the fracture to J.M.’s right arm was an
acute fracture that would have caused significant and obvious pain. Trial counsel’s failure to
expose this inconsistency in Rana’s testimony did not create a reasonable probability of a different
outcome, and there is no merit to Van Loon’s second claim of ineffective assistance of counsel.
        Van Loon similarly points to an apparent inconsistency between McManigal’s trial
testimony and his testimony in a separate trial. Specifically, McManigal previously testified that
he had been involved in approximately 20 child abuse cases. Yet, at trial, McManigal testified that
he had been involved in “about a hundred plus” child abuse cases. Van Loon argues that
McManigal’s trial testimony improperly bolstered law enforcement’s identification of Van Loon
as the perpetrator of abuse. However, the State counters that McManigal was only minimally



                                                 -8-
involved in the investigation and was not involved in the identification of Van Loon as the
perpetrator. Indeed, McManigal testified that Van Loon was identified as the perpetrator
immediately after the interview conducted by Cook, and McManigal did not even know the basis
for Cook’s conclusion. Whether or not McManigal inflated the number of child abuse cases he had
worked on, such could not have improperly bolstered a determination in which McManigal played
no part. Trial counsel’s failure to expose the inconsistency in McManigal’s testimony did not
create a reasonable probability of a different outcome, and there is no merit to Van Loon’s third
claim of ineffective assistance of counsel.
        Van Loon’s fourth and fifth claims allege that trial counsel was ineffective for failing to
investigate and call certain witnesses. When the claim of ineffective assistance of counsel on direct
appeal involves uncalled witnesses, it is sufficient that appellate counsel give the names or
descriptions of any uncalled witnesses forming the basis of a claim of ineffective assistance of trial
counsel. See State v. Blake, 

, 

 (2022). However, the appellate court
does not need specific factual allegations as to what the person or persons would have said, which
will not be found in the appellate record. 

 Such specificity is necessary so that the postconviction
court may later identify whether a particular claim of failing to investigate a witness is the same
one that was raised on direct appeal. 

        Van Loon’s fourth claim challenges trial counsel’s failure to call employees of the
Department of Health and Human Services (DHHS) to testify. We conclude that Van Loon has
raised this claim with sufficient specificity, however, the record is silent as to the substance of the
uncalled DHHS employees’ testimony or how such testimony would have aided Van Loon’s
defense. Accordingly, we conclude that Van Loon has preserved this claim for postconviction
review, but the record is insufficient to resolve the claim on direct appeal.
        Van Loon’s fifth claim alleges that trial counsel was ineffective for failing to investigate
and call an alibi witness identified as AJ Kamphous. Van Loon argues that Kamphous could have
shed light on the period of time that Van Loon was not present in the house on March 26, 2019.
Having identified Kamphous by name, Van Loon has raised the claim with sufficient specificity
to preserve it for postconviction relief. However, we conclude that Van Loon cannot show
prejudice because the evidence, including Van Loon’s recorded interview and Lee’s testimony,
clearly established that Van Loon was present in the home for a substantial period of time on
March 26 and had contact with J.M. prior to leaving for a period of time. Even if Kamphous had
fully corroborated the account of events provided by Van Loon and Lee, the evidence would have
nevertheless established adequate opportunity for Van Loon to harm J.M. prior to leaving the
home. Accordingly, trial counsel’s failure to investigate or call Kamphous regarding Van Loon’s
whereabouts on March 26 did not create a reasonable probability of a different outcome and Van
Loon’s fifth claim of ineffective assistance of counsel is without merit.
        Finally, Van Loon’s sixth claim alleges that trial counsel was ineffective for failing to
consult with and call an expert witness to rebut the State’s medical experts. Van Loon argues that
counsel should have consulted a “biomechanical engineer” to counter the expert medical testimony
offered by the State. Brief for appellant at 35. Van Loon does not in any way identify a specific
expert witness that counsel failed to consult. Rather, Van Loon simply concludes that the failure
to obtain a rebuttal expert was constitutionally deficient performance.



                                                 -9-
         While it is clear from State v. 

 that a claim regarding uncalled lay witnesses
must include names or descriptions thereof, it does not appear that claims regarding the failure to
consult an expert witness demand the same level of specificity. See, State v. Figures, 

, 

 (2021); State v. Devers, 

, 

 (2020); State v.
Mora, 

, 

 (2017); State v. Filholm, 

, 

(2014). In each of these cases, appellant raised, on direct appeal, a claim of ineffective assistance
for failure to consult with an appropriate expert witness. Furthermore, in each case, appellant failed
to name or describe a specific expert witness forming the basis of the claim. Nevertheless, the
court found each of those claims to be adequately raised on direct appeal. In Devers, Justice Cassel
wrote a concurring opinion noting that the State had simply conceded, “perhaps because of our
case law,” that claims regarding the failure to consult an expert witness were adequately raised.
State v. Devers, 

, 

 (Cassel, J., concurring). As such, there was
no need to address the matter in that case, but Justice Cassel encouraged the court to, in a proper
case, more directly address “whether allegations of trial counsel’s deficient performance regarding
a potential expert witness’ testimony are sufficient without naming the expert.” 

, 

. In this case, we conclude that Van Loon has raised his sixth claim of ineffective
assistance with sufficient specificity to preserve the claim for postconviction review, but the record
is insufficient to resolve the claim on direct appeal.
                                          CONCLUSION
        For the foregoing reasons, we affirm Van Loon’s convictions and sentences. We conclude
that Van Loon’s first, second, third, and fifth claims of ineffective assistance of counsel are
affirmatively refuted by the record because Van Loon cannot show prejudice. With respect to
Van Loon’s fourth and sixth claims of ineffective assistance, we conclude the record is insufficient
to resolve the claims on direct appeal but that Van Loon has preserved them for postconviction
review.
                                                                                         AFFIRMED.




                                                - 10 -